BEFORE THE IOWA CIVIL RIGHTS COMMISSION

DARRELL HARVEY, Complainant, and IOWA CIVIL RIGHTS COMMISSION,

vs.

SANDY CALDWELL, Respondent.

Findings of fact continued

H. The Evidence Ultimately Establishes That Sex Discrimination Was the Reason For the Respondent's Refusal to Renew Complainant Harvey's Lease Under a McDonnell-Douglas Analysis:

Prima Facie Case of Sex Discrimination:

33. A prima facie case of sex discrimination was established through evidence that:

a. Complainant Harvey asked to have his lease renewed. See Finding of Fact No. 13.

b. There were no established objective minimum qualifications for tenancy. See Finding of Fact No. 34.

c. Complainant Harvey was rejected although no other prospective tenant expressing an interest in renting or renewing has been rejected. See Finding of Fact No. 36.

d. After the rejection of Harvey, Respondent Caldwell continued to seek other prospective tenants to lease the apartment. See Finding of Fact No. 37.

34. There is no evidence in the record of any specific minimum objective requirements for prospective tenants for Respondent Caldwell's apartments. She has no application process or reference requirements for either prospective tenants or sublessors. (Tr. at 271). The Respondent does not rely on any postings or paid advertising to obtain tenants. (R. EX. # 37; Tr. at 220, 273-74). Respondent Caldwell relies on the general knowledge of the Cedar Falls and student communities that she has rental properties in order to obtain prospective tenants. (Tr. at 276-77).

35. When Respondent Caldwell shows someone a unit, she puts their name on a list. If she shows a subsequent person a unit, she puts his or her name on a list, but tells them it has been previously shown. If the second party is interested, she will try and contact the first person to see whether they want to rent, but she would not reject the overtures of a second party who wished to make a deposit on the apartment. (Tr. at 283-84). The first person to look is given a reasonable period to determine whether they want the apartment. They get it if they want it. (Tr. at 320).

36. Under this "first shown, first leased" system no prospective tenant, with the exception of Complainant Harvey, has ever been denied an apartment. (Tr. at 233, 253, 320, 387-88). Renewal of leases is usually a fairly automatic procedure. (Tr. at 388). Approval of sublessors is also automatic once the name of the sublessor is given. (Tr. at 272-73).

37. After the rejection of Complainant Harvey's request for renewal, Respondent Caldwell continued to seek other prospective tenants for apartment # 3. It was shown to Ann Adams on March 30, 1990. The lease with her and Ms. Haverkamp was signed on April 3, 1990. (R. EX. # 70; Tr. at 253, 275, 313).

Prima Facie Case Rebutted Through Respondent Caldwell's Articulation of a Legitimate Nondiscriminatory Reason for the Rejection of Harvey's Request to Renew His Lease:

38. Respondent Caldwell produced evidence of a legitimate, non-discriminatory reason for the refusal to renew Complainant Harvey's lease. That reason was Complainant Harvey's failure, prior to that date, to notify either the Caldwells or the police of the BB gun damage to the storm windows in his bedroom. (Tr. at 216-17, 233, 253, 272, 300, 306, 319, 387).

39. Respondent Caldwell never suggested that Harvey actually inflicted the damage. She did testify that she thought he had "allowed" the damage to her property, an act which she understood to be prohibited, according to a summary of Iowa Code section 562A.17 (1989) which was in her possession. (R. EX. # 55; Tr. at 232, 307). While it was not her understanding that Harvey had given the individual permission to shoot at the building, it was her understanding that, by choosing to not report the individual who he saw shooting the building, Harvey "willingly allow[ed]" the damage to be done. (Tr. at 232, 307-09). While her understanding may not be an accurate construction of Iowa Code section 562A.17 (1989), which refers to "knowingly permit[ing]" a person to damage property, her reason is, nonetheless, a lawful, nondiscriminatory reason.

40. In the same manner, her testimony concerning Title 42 United States Code section 3604 of the Fair Housing Act reflects a lack of legal understanding concerning this section, which is an exception to the prohibition against discrimination in the sale or rental of a dwelling because of a handicap of a buyer or renter. (R. EX. # 55; Tr. at 232). Nonetheless, her concern is with the failure to report the shooting of a BB gun at a house, an act which jeopardizes the safety of tenants. (Tr. at 232). The reason is still legitimate and nondiscriminatory.

Respondent Caldwell's Legitimate Nondiscriminatory Reason for the Rejection of Harvey's Request to Renew His Lease Has Been Shown to Be a Pretext for Discrimination:

41. The Respondent's reason for refusing Complainant Harvey's request to renew his lease has some basis in fact. It is important to note that Respondent Caldwell held Harvey responsible for his failure to report the damage. Harvey admitted that he had failed to notify either Respondent Caldwell or the police of the BB gun damage to the windows for a four month period, from November of 1989 to March of 1990. (Tr. at 63-64). His failure to notify was motivated by his fear that, if there were an investigation, the men across the street would retaliate against him by damaging his car. (Tr. at 28, 303).

42. However, Complainant Harvey and the Commission proved, through Harvey's and Jeff Ruge credible testimony concerning statements made by Respondent Caldwell both before and after she became aware of the BB gun damage, that the real motivation for Respondent Caldwell's action was sex discrimination. See Findings of Fact Nos. 15, 32. Furthermore, Respondent Caldwell never informed Complainant Harvey that his failure to report window damages to the police or to her was a reason for the refusal to renew his lease. The only reason he was given by Respondent Caldwell was that she preferred to rent to women. (Tr. at 393).

43. In summary, Respondent Caldwell's articulated legitimate, nondiscriminatory reason for refusing to renew Complainant Harvey's lease has been shown to be false or otherwise unworthy of credence because the BB gun damage to windows was unknown at the time she first informed Complainant Harvey that she was not renewing his lease and because she never told Harvey that was the reason. The combination of disbelief of the articulated reason and the inference of discrimination remaining from the prima facie case demonstrates that reason is a pretext for discrimination. See Findings of Fact Nos. 15, 33, 42.

44. Pretext was also shown by evidence of statements by Respondent Caldwell, before and after Caldwell's becoming informed of the window damage, indicating that sex discrimination was the true reason for the failure to renew Harvey's lease. By showing pretext through both of the methods set forth herein, sex discrimination has been established. See Findings of Fact Nos. 7, 15, 32.

I. The Evidence Ultimately Establishes That the Respondent Made Sex Discriminatory Statements and That Sex Discrimination Was the Reason For the Respondent's Refusal to Renew Complainant Harvey's Lease Under a Direct Evidence Analysis:

45. There is sufficiently probative direct evidence in the record to establish (a) that Caldwell made statements to Harvey in 1989 and on March 27 and 28, 1990 and to others indicating that she preferred to rent to female tenants and (b) that the actual motivation for her failure to renew the lease was sex discrimination. No affirmative defenses were offered to rebut the showing that the discriminatory statements were made. See Findings of Facts Nos. 7, 14, 15, 32. The window damage reason, if viewed as an affirmative defense to the refusal to renew the lease under the direct evidence method of proof, was not established by a preponderance of the evidence as the evidence showed that (a) Respondent Caldwell had decided to not renew the lease of Complainant Harvey due to his sex prior to the time she became aware of the window damage; (b) Caldwell continued to give this as a reason for not renewing his lease even after discovery of the window damage; and, (c) Caldwell never told Harvey that his failure to report window damage was part of the reason for the failure to renew his lease. See Findings of Fact Nos. 15, 32, 42.

J. The Greater Weight of the Evidence Does Not Support the Allegation that Respondent Caldwell Leased Harvey's Former Apartment to the Subsequent Female Tenants at a Rate Lower Than She Had Informed Harvey He Would Have Had With an Equal Number of Male Tenants:

The Allegation:

46. In his complaint, Harvey alleged, with respect to the women that were shown the apartment on March 28th, that Respondent Caldwell "is also allowing the 4 women to pay the same rate that we did and they should pay more." (Notice of Hearing).

Rates at Which the Apartment Was Rented to Harvey:

47. Complainant Harvey and Mark Warren rented their apartment at the rates of $270.00 per month for the months of June and July of 1989; and of $320.00 per month for the period of August 1, 1989 to June 1, 1990. (R. EX. # 12, 61; CP. EX. A; Tr. at 11, 60-61, 181). The $320.00 per month base rate for two people would have been increased an additional $25.00, to $345.00 per month, if he and Warren had a roommate, making a total of three tenants. (Tr. at 11, 181, 383). An increase of $25.00 per month for each additional tenant over two, and a reduction of $25.00 per month from $345.00 when the number of tenants is two instead of three, was Respondent Caldwell's policy. (Tr. at 181, 383).

Harvey's Testimony As to the Better Terms Offered the Female Prospective Tenants:

48. Harvey initially testified that Respondent Caldwell was stating that the rent would be $330.00 per month for the four women. (Tr. at 20). He later testified that Caldwell said either $320.00 or $330.00 for the four of them. He thought it was $320.00, but had since seen the lease for those who actually rented the apartment for $330.00, and could now not remember what it was. (Tr. at 59). He testified that the amount stated seemed odd to him as it was less than the base rent which Caldwell had informed him that he and his roommates would have paid if a total of three men had rented the apartment, i.e. $345.00. (Tr. at 20-21, 60- 61).

49. Chris White could not recall what amount was mentioned when rent was discussed. (Tr. at 334-35).

50. The rental amount for Ann Adams and Christine Haverkamp, who leased the apartment on April 3, 1990, was $330.00 per month for the entire term of the lease, from June 1, 1990 to May 31, 1991. (R. EX. 13, 61; Tr. at 183, 243, ). This amount was $60.00 per month more than Complainant Harvey and Mark Warren paid for the months of June and July of 1989. This was $10.00 per month more than Complainant Harvey and Mark Warren paid for the months of August 1989 through May 1990. See Finding of Fact No. 57.

Comparison of Treatment of Past Male and Female Tenants With Respect to Rental Amounts:

51. A further demonstration of equal treatment of males and females in rent is shown by comparison of tenants of Apartment # 3 prior to the rental by Harvey and Warren. During the period from August 1, 1986 to June 1, 1987, the apartment was rented to three females for the sum of $345.00 per month. (R. EX. # 9; Tr. at 178-79). During the period from August 1, 1987 to June 1, 1988, the apartment was rented to three males for the sum of $345.00 per month. (R. EX. # 10; Tr. at 179). During the period of June 1, 1988 to June 1, 1989, the apartment was rented to three males at the rate of $300.00 per month until August 1, 1988 and at the rate of $345.00 per month until June 1, 1989. (R. EX. # 11; Tr. at 180).

52. The allegation that Respondent Caldwell offered more favorable rental terms to prospective female tenants than to the complainant on the basis of his sex is not supported by the greater weight of the evidence.

K. Credibility Findings:

53. Because of the importance of credibility to the resolution of the issues in this case, a number of references to credibility of the witnesses have already been made. These findings need not be reiterated in full here. It is sufficient to find that Complainant Harvey's, Jeff Ruge's, and Mark Warren's testimony is more plausible, internally consistent, and more consistent with the greater weight of the evidence, including that of the written statements of J.D. Tonn and Stacy L. Borchers, than the testimony of Sandra Caldwell, Dr. Caldwell, and Amy Caldwell.

54. Chris White's credibility was enhanced not only by her status as a disinterested witness, but also by her demeanor. Although she admitted being nervous, she gave the impression that this was the usual nervousness of a witness who does not routinely testify in judicial or quasi-judicial proceedings. (Tr. at 333). Overall, the impression she gave was of a witness who was trying to tell the truth. However, it is reasonable to believe and it is found that she forgot or was mistaken with respect to Jeff Ruge's presence and whether the conversation on window damage was initiated by Mrs. Caldwell or the Complainant.

L. Compensatory Damages:

55. The Complainant seeks a total of two thousand dollars ($2000.00) in compensation for the following items:

(a) the difference between what he paid for the combination of rent and utilities (gas and electricity) at Gold Falls Villa for the period of his lease there from May 21, 1990 to May 31, 1991 and what he would have paid for those items at 2508 Olive Street during that time if he had remained there.

(b) telephone hookup charges at Gold Falls Villa.

(c) ten dollars for one tank of gasoline expended in moving his property from his old apartment to his new apartment at Gold Falls Villa.

(d) his time spent packing and preparing for the move, making the move, unpacking, and setting up in the new apartment.

(e) some amount less than $154.00 for hours of work missed at Hy-Vee due to delay in starting his part-time employment there because of moving.

(f) emotional distress.

(Tr. at 83, 94-95).

Rent and Utilities:

56. The rent at 2508 Olive Street was increased to $330 per month for two people for the period from June 1, 1990 to June 1, 1991. This was $165.00 per person. (R. EX. 12, 13, 61; Tr. at 183, 243). The rent at Gold Falls Villa for the period of May 2, 1990 to May 31, 1991 was $300.00 per month for two people. This was $150.00 per person. (CP. EX. E).

57. The tenants at 2508 Olive Street were liable for utilities (gas and electricity) only if they exceeded $50.00 per month, which they never did. (Tr. at 40). Harvey and his roomate were liable, however, for the full amount of these utilities at the Gold Falls apartments, which amounted to a total of $462.30 or $231.15 per person for the lease period from May 21, 1990 to May 31, 1991. (CP. EX. G; R. EX. 61).

58. For the eleven days of overlapping leases at their old and new apartments from May 21 to May 31, 1990 inclusive, Complainant and his roommate paid an extra $106.48 rent to Gold Falls Villa which would not have been paid if they had been able to renew their lease at 2508 Olive Street. [($300 month rent at Gold Falls Villa / 31 days per month) X 11 days = $9.68 per day X 11 days = $106.48]. (CP. EX. E). This would be $53.24 per person.

59. For the period from June 1, 1990 to May 31, 1991, the total difference between the combined rent and utilities paid by Complainant alone at Gold Falls Villa and the amount he would have paid at 2508 Olive was $51.15. The calculation is: [($150.00 rent per month at Gold Falls X 12 months) + ($231.15 complainant's total share of utilities at Gold Falls)] -[($165.00 rent per month at 2508 Olive X 12 months) + (no charge for utilities at 2508 Olive)] = [($1800) + ($231.15)] - [($1980.00) + ($0)] = [$2031.15] -[$1980.00] = $51.15.

60. The total compensation for additional rent and utility costs due Complainant for the period of May 21, 1990 to May 31, 1991 is $53.24 + $51.15 = $104.39.

Telephone Hookup Charges at Gold Falls Villa:

61. The total telephone one-time hookup charges ("order processing" and "line connection") at Gold Falls Villa for Complainant Harvey and his roomate were $36.00 effective June 2, 1990. (CP. EX. F; Tr. at 47-48). Complainant Harvey's share, for which he should be compensated, is $18.00. (Tr. at 97). For reasons stated in the conclusions of law, Harvey cannot be awarded his roommate's share for this or any other damage remedy, despite an agreement between him and his roommate to split the damages awarded. (Tr. at 97-98). See Conclusion of Law No. 32.

Gasoline Moving Costs:

62. Complainant Harvey asks compensation for $10.00 for a full tank of gas which he asserts was expended when he moved his belongings in his Chevette from 2508 Olive to Gold Falls Villa. (Tr. at 43, 94).

63. Complainant's testimony that it was an approximately 2 mile round trip from 2508 Olive to Gold Falls can be verified by comparison to the distances on the map of Cedar Falls, Respondent's Exhibit 65, wherein the locations of 2508 Olive and Gold Falls Villa are marked, respectively, by yellow circles on the map. (R. EX. 65; Tr. at 89, 105). He testified that he could drive 200 miles on a tank of gas in city driving in his Chevette. (Tr. at 89).

64. At two miles per round trip, Complainant would have to make 100 round trips to expend between 2508 Olive Street and Gold Falls Villa to expend a full tank of gas. Complainant also testified, however, that he made only 15 to 25 trips in his Chevette while moving. (Tr. at 121). Even with the higher figure, he would have driven no more than 50 miles, which would have expended one quarter of a tank of gas. Given his cost of $10.00 per full tank of gas, therefore, he should be compensated $2.50 for the one quarter tank of gas actually expended.

Compensation For Loss of Time Due to Packing and Preparing For the Move, Making the Move, Unpacking and Setting Up in the New Apartment:

65. Complainant Harvey is asking for compensation for his time spent packing and preparing for the move, making the move, unpacking, and setting up in the new apartment at Gold Falls Villa. (Tr. at 94). It took Complainant Harvey several days to pack. (Tr. at 42). It may be reasonably inferred that "several days" would mean at least two eight- hour days. He then made the actual move over a two day period. (Tr. at 42). It may be reasonably inferred that this would mean at least two more eight-hour days. Given that it took at least two eight-hour days to pack, it may be reasonably inferred that it would take an equal amount of time to unpack and "set up" Harvey's new apartment. Thus the total lost time for which compensation is sought by Harvey is six eight-hour days or a total of 48 hours.

66. How should this time be compensated? The evidence demonstrates that, in May of 1990, Complainant Harvey began working at Hy-Vee at $4.00 per hour. This seems to be a reasonable rate for the Complainant's time. Therefore, Complainant should be compensated in the amount of $192.00 for his forty-eight hours of lost time.

Compensation of Less Than $154.00 for Delay in Starting Work at Hy-Vee:

67. Complainant Harvey secured work at Hy-Vee on May 16, 1990. (Tr. at 41). After working a total of 2.4 hours on either the 16th or 17th, he asked for and received a delay in the start of his work until May 31st. (R. EX. 72-payroll records; Tr. at 41.) He asked for at least a one week delay so he would have time to pack, spend time with friends and family, and to have time between his study and work. (Tr. at 41, 120, 127).

68. Complainant Harvey originally asked for compensation of $154.00 based on a 40 hour week at Hy-Vee at $3.85 an hour (which was less than the $4.00 per hour rate he actually received). (R. EX. 72-payroll records; Tr. at 95- 96). He retracted this request after he examined his payroll records which indicated that he had never worked forty hours per week at Hy-Vee, although he had asked for forty hours at the time of his application. (R. EX. 72-payroll records; Tr. at 96-97). In fact, Harvey never worked more than 26.4 hours in a week at Hy-Vee. (R. EX. 72-payroll records). Complainant Harvey still seeks compensation for an unspecified amount less than $154.00, which would reflect the work he missed due to the delay he requested. (Tr. at 95- 97).

69. This compensation should not be granted for two reasons. First, Complainant Harvey indicated that he asked for a delay for three reasons: (1) time to pack, (2) time to spend time with friends and family, and (3) time for a break between his college studies and work. (Tr. at 41, 120, 127). The greater weight of the evidence suggests that Complainant Harvey would have taken a break, and delayed his part-time employment at Hy-Vee regardless of whether he had to pack or not. The loss, in other words, would have been incurred regardless of the discrimination. Second, to compensate Harvey for this delay would duplicate part of the compensation already made for loss of time. Complainant Harvey should not be awarded double damages for what in essence is part of a previously compensated injury.

Emotional Distress:

70. Complainant Harvey suffered at least mild to moderate emotional distress due to discrimination from the time on March 27, 1990, when he was informed by Respondent Caldwell that she preferred to have women in the apartment until at least the time when he was settled in his new apartment sometime after May 21st.

71. Harvey indicated that he was "in shock" after his telephone conversation with Caldwell on March 27th. (Tr. at 16). When the apartment was shown on the 28th, he recalled Respondent Caldwell informing the women that the first person to put a deposit down would have the apartment held for them. He remembered thinking "I already have my deposit money down, and I can't stay." He felt quite helpless. (Tr. at 20).

72. The necessity of having to look for other apartments increased the strain already imposed by his class paper assignments, preparation for final examinations, and time spent working at the dining hall. (Tr. at 34-36).

73. His emotional state was described as "very hard because I was living in a place I wanted to stay." He was content where he was at. Because of the other demands on his time, the need to coordinate his schedule with his roommate, Brian, and a tight housing market, he spent a lot of time, energy and frustration in the effort to find apartments in their price range. He felt very frustrated and powerless. (Tr. at 36).

74. Complainant Harvey ended up living in Gold Falls Villa, a location which he did not consider to be as nice as the Respondent's apartments. (Tr. at 38). From the outset, he felt the Respondents actions were wrong. (Tr. at 44). Harvey was quite upset as he had taken good care of his apartment. He felt he was being grouped with other guys, other male tenants in the building, who may not have been as careful as he. (Tr. at 46).

75. As set forth previously, Complainant suffered out- of-pocket losses due to Respondent's discriminatory conduct. It may be inferred that such loss causes some emotional distress. See Findings of Fact Nos. 60, 61, 64, 66.

76. In light of the intensity of the distress and its limited duration, the sum of one thousand five hundred dollars ($1,500.00) is full, reasonable and adequate compensation for Complainant Harvey.